This Article presents a novel theory of the political economy of transnational crime control, answering three consecutive questions. First, why does crime travel across national borders? The Article demonstrates that in the globalized economy, profit-driven crime (e.g., money laundering, drug trafficking, gaming and the sex trade) responds - much like legitimate economic activity - to local regulation, by shifting to the territorial jurisdictions in which it incurs lower expected sanctions, making it most profitable for criminals. Second, how do governments react to the international mobility of criminal activity? The Article argues that the crime control policies adopted by individual states influence the global distribution of transnational crime, and that they subsequently impact upon the crime control policies adopted by other states. More specifically, it demonstrates how in a dynamic setting states engage in two types of regulatory crime control "races," depending on differential national attitudes towards the activity involved. The first is the outsourcing race, in which increasingly strict policies cause crime to shift to other states. The second is the insourcing race, in which increasingly lenient policies attract crime to the state. In each of these races, states impose externalities upon each other, and inefficient levels of both enforcement and crime arise, in what may be seen as a global collective action problem. Finally, how should global crime control be designed to enhance global welfare? Building on theories of public choice and international relations, the Article offers a critique of existing policies in the area, and explores innovative crime control policies.

The ASEAN Charter, adopted in Singapore in November 2007, asserts in Article 3 that ASEAN "as an inter-governmental organisation, is hereby conferred legal personality". This paper examines the legal status of the association, as well as the political question of whether the whole is greater than (or perhaps less than) the sum of its parts. The argument presented is that legal personality at the international level is less a status than it is a capacity: the fact that ASEAN now claims international legal personality in the Charter does not mean it lacked it previously, nor that it will possess it after the Charter is ratified. Rather, the key question is what specific powers have been granted to ASEAN and how those powers are used. On these questions, the Charter is largely silent.

Jacob Katz Cogan (Univ. of Cincinnati - Law) will give a talk today at the Samford University Cumberland School of Law Works in Progress Program on "Representation and Power in International Organization: The Current Constitutional Crisis."

Thursday, March 27, 2008

The world's nations vary widely in the quality of their judicial systems. In some jurisdictions, the courts resolve commercial disputes quickly, fairly, and economically. In others, they are slow, inefficient, incompetent, biased, or corrupt. These differences are important not just for litigants, but for nations as a whole: effective courts are important for economic development. A natural implication is that countries with underperforming judiciaries should reform their courts. Yet reform is both difficult and slow. Another way to deal with a dysfunctional court system is for litigants from afflicted nations to have their commercial disputes adjudicated in the courts of other nations that have better-functioning judicial systems. We explore here the promise of such extraterritorial litigation and conclude that it is strong, particularly in light of a communications revolution that is making litigation at a distance increasingly feasible.

While available data suggests that the volume of extraterritorial litigation is presently small, a set of basic legal reforms could eventually change that situation dramatically. To create incentives for adopting those reforms, it is essential to provide jurisdictions with a strong incentive to attract foreign litigants. The best way to achieve this is to allow jurisdictions to impose higher court fees in cases between foreign litigants that do not have substantial ties to the forum state. This may require an important adjustment in the legal culture. But only by abandoning formal equality in court fees is it likely that real global equality in access to judicial services can be accomplished.

Andrew T. Guzman (Univ. of California, Berkeley - Law) & Jennifer Landsidle (U.S. Department of State - Office of the Legal Adviser) have posted The Myth of International Delegation. Here's the abstract:

There is a growing and misinformed sense in some quarters that the United States and other countries have engaged (and continue to engage) in delegations to international institution that involve a significant threat to domestic sovereignty. Concerns about such delegations come from academics (John Yoo: "Novel forms of international cooperation increasingly call for the transfer of rulemaking authority to international organizations"), prominent politicians (Bob Barr: "Nary a thought is given when international organizations, like the UN, attempt to enforce their myopic vision of a one-world government upon America, while trumping our Constitution in the process. Moreover, many in our own government willfully or ignorantly cede constitutionally guaranteed rights and freedoms to the international community;" Jesse Helms: "The American people see the UN aspiring to establish itself as the central authority of a new international order of global laws and global government."); and senior government officials (John Bolton: "For virtually every area of public policy, there is a Globalist proposal, consistent with the overall objective of reducing individual nation-state autonomy, particularly that of the United States").

In our view the perspective evidenced by the above quotes is almost wholly a myth. But it is a myth that persists and continues to attract attention. This Essay seeks to bring forward a more realistic and accurate view of international institutions and engagement. We demonstrate that meaningful delegations of sovereignty are extremely rare and even when they do exist they are carefully cabined. Decision-making authority in all areas remains firmly in the hands of national governments.

Laura Dickinson (Univ. of Connecticut - Law) will give a talk today at the California Western School of Law International Legal Studies Program and the University of California, San Diego Institute for International, Comparative, and Area Studies Joint Speaker Series on the Future of International Humanitarian Law. The topic is "Outsourcing War and Peace."

Sean Murphy (George Washington Univ. - Law) will give a talk today at the Temple University School of Law International Law Colloquium on "The Jus Ad Bellum in View of New Security Threats."

The development of international human rights law and international criminal law has triggered the question whether states and their officials can still shield themselves from foreign jurisdiction by invoking international immunity rules when human rights issues are involved. The Pinochet case was the first case that put this issue in the limelight of international attention. Since then, the question has been put to several domestic and international courts, and has engaged the minds of scholars and politicians around the world.

This book examines the tension between international immunity rules, international human rights law, and international criminal law. The progressive development of a normative system of international human rights law and international criminal law without the simultaneous development of international institutional enforcement mechanisms had brought the question of the role of national courts in the application of these norms to the fore and has made the question as to the relation between immunity rules and human rights and international criminal law an immediate one. The tension between the centuries old immunity rules and the relatively recent developments in international human rights law and international criminal law presents itself in two distinct forms. In the first place it can be questioned whether immunity rules as such are compatible with certain fundamental rights of individuals under international law such as the rights of access to court, the right to a remedy, or the right to effective protection. Secondly, it can be questioned whether immunity rules apply unabridged in proceedings concerning grave human rights abuses.

In its examination of these two questions this book sets out to clearly distinguish the different scope and nature of the rule of state immunity, the rule of functional immunity and the personal immunity of diplomatic agents and heads of state. While strong arguments against certain applications of immunity rules can be derived from international human rights law and international criminal law, this book argues that an unqualified attack on immunity rules risks casting a shadow over all human rights based arguments.

Among the reasons that states comply with international law in the absence of coercive enforcement mechanisms is a concern for their reputation for compliance with international legal rules. Such a reputation is valuable because it allows states to make credible commitments to one another in an effort to overcome problems of cooperation. To date neither the international relations nor the international law literature has developed a theory of reputation that explains in detail how states acquire a reputation for compliance, how they lose it, and how it affects behavior. This paper seeks to provide such a theory. It examines how states' reputation for compliance can be gained or lost and how reputational concerns interact with other payoffs. It considers strategic decisions states must make to manage reputation over time as well as the connection between better information and more effective reputational sanctions. Finally, the paper discusses the question of whether states have a single reputation for compliance with international law or, instead, several such reputations corresponding to different issue areas. The way in which this compartmentalization of reputation influences the ability of states to solve international problems is explained.

The Tokyo International Military Tribunal (IMT) is not frequently discussed in the literature on international criminal law, and it is often thought that it was little more (and possibly less) than a footnote to the Nuremberg proceedings. This work seeks to dispel this widely held belief, by showing the way in which the Tokyo IMT was both similar and different to its Nuremberg counterpart, the extent to which the critiques of the Tokyo IMT have purchase, and the Tribunal's contemporary relevance. The book also shows how the IMT needs to be treated, not just as one overarching entity, but also as being made up of different sets of people, who made up the prosecution, the defence and the judges. These disagreed with each other, and at times internally, over the way in which the trial should proceed, and the book shows how each had an impact on the proceedings.

The book is a comprehensive legal analysis of the Tokyo IMT, covering its law, theory, practice and the lessons it may teach to those prosecuting and defending international crimes today. It also places the trial in its political and historical context. The work is based in part on extensive archival research undertaken by the authors, which has unearthed large quantities of documents that have previously been ignored by those who have studied the Tribunal.

This morning, the Supreme Court of the United States decided that, at present, state courts are not obligated to follow the judgment of the International Court of Justice in Avena. Others will parse the Court's decision. Briefly, I thought the Chief Justice Roberts's conceptualization of non-self-execution was quite unsubtle. For him, it is all or nothing - if a treaty is self-executing, then it is a part of U.S. law; if it is non-self-executing, then it is not and cannot be, except through implementing legislation. But simply because a treaty (in whole or in part) is non-self-executing does not necessarily mean that the President does not have the authority to execute it. Indeed, the Senate, when providing its advice and consent to ratification of a non-self-executing treaty, may well assume that the President will take domestic action to enforce the treaty's provisions. Roberts simply presumes that the Senate would never make this assumption; for this reason, Roberts places the President's action in this case in Youngstown category three. It is unclear, however, that this is an accurate portrayal of how the relevant constitutional actors (the President and the Senate) conceptualize the advice and consent interaction, either generally or in the circumstances of this case.

Taking the Court's decision as is, though, how do the relevant parties move forward? What are their options?

For Mexico, today's ruling clearly is problematic, and Mexican domestic politics may require the Mexican government to take some action. There are several possibilities, none of them promising. The most likely initial step will be the lodging of a diplomatic protest. That protest may take several forms, including calls from Mexico's President and Foreign Minister to their U.S. counterparts. Mexico may threaten to raise U.S. noncompliance with Avena at the Security Council. Of course, the United States will veto any resolution that is critical of U.S. actions, but there will be diplomatic and public relations costs nonetheless. Mexico might also seek further ICJ rulings on this matter, either through an application for an interpretation or revision of the Avena judgment (see articles 60 and 61 of the ICJ Statute) or through a request by the General Assembly for an advisory opinion. There would be jurisdictional issues with an attempt at revision (particularly in light of the U.S. withdrawal from the Optional Protocol), and it is doubtful that the ICJ would want to push the United States further, but, again, though ultimately unsuccessful on the merits, costs would accrue to the United States by having to fight the fight. All this means that Mexico might seek to negotiate a deal that would avoid further embarrassment to the United States. What that deal might entail is a matter of speculation.

For the United States, today's ruling is also clearly problematic. The fact that the President took the action he did in 2005 to attempt to implement the Avena judgment gives a good indication of the Executive Branch's views regarding the downsides of noncompliance with the ICJ's judgment. If there is the political will, the President might seek legislation to implement Avena; indeed, perhaps the Democratic Congress will take independent action. In the short-term, though, the President and the State Department will need to work on a number of fronts to placate Mexico and to assure the international community (including the ICJ) that the United States takes its international obligations seriously.

For the Mexican nationals who were the subject of Avena, today's decision is, of course, particularly unfortunate. For those who are incarcerated outside of Texas, there is still the chance that their state courts will follow Oklahoma's lead and give substance to the United States's obligations. For those incarcerated in Texas, they will need to rely upon the unlikely support of that state's governor (in clemency proceedings) and legislature (for a legislative fix).

ADDENDUM (9:15PM): Roberts's opinion is striking in the stark way he conceptualizes the constitutional roles of the three branches of the federal government. In the Roberts world, each branch has its own powers - to legislate, to execute the laws, to interpret the law - which are exclusively given to it. The branches (and their accompanying powers) are like boxes, self-enclosed, non-overlapping. (Roberts probably has the same black-and-white vision of the relative domains of the federal government and the states; he was able to avoid that topic today by deciding the case in the way he did.) One gets a good sense of Roberts's perspective from the Medellin argument transcript, where Roberts and Scalia and others on that side of the aisle were clearly concerned about the possibility that the role of the federal judiciary would be reduced if the petitioner prevailed. But it is even clearer in today's majority opinion, where Roberts is extremely solicitous of Congress's legislative powers. It is for this reason that Roberts cannot contemplate the possibility - which I alluded to above - that a non-self-executing treaty might be executed by the President. That simply is not possible if you are Chief Justice Roberts, because only the Congress has the legislative authority (and it is only through formal legislation that a non-self-executing treaty can be executed). One wonders whether that is an accurate description of the Constitution, in which the Framers purposely incorporated cooperation, as much as division, between the branches (and which, moreover, contains numerous ambiguities concerning the allocation of powers). One also wonders whether that is a workable and desirable framework moving forward.

Today, just days short of the fourth anniversary of the International Court of Justice's judgment in Avena, the Supreme Court of the United States decided Medellin v. Texas (No. 06-984). The Court, in an opinion authored by Chief Justice Roberts, decided in favor of Texas, 6-3. In so doing, the Supreme Court rejected the argument that the International Court's decision was directly enforceable in U.S. courts; the Supreme Court also rejected the argument that the President's memorandum was sufficient to preempt Texas law. Justice Breyer, with whom Justices Souter and Ginsburg concurred, dissented. Justice Stevens filed an opinion concurring in the judgment. The opinions are available here. For previous coverage, see here, here, here, here, and here.

The treatment of foreign investors and of their investments on the territory of a host State is often subject to a bilateral investment treaty (BIT) signed by the national State of the investors and the host State. These BITs usually contain a clause in which the two States offer fair and equitable treatment (FET) to the foreign investors on their territory. Moreover, this clause has become a norm of customary law, implying that investors may rely on it even outside the context of the BIT. Foreign investors whose rights under this clause have not been respected may bring the State in front of an international tribunal. This book analyses not only the conventional and customary framework se the FET clause but also its scope and all its applications in the existing case law.

This book tackles the standard of fair and equitable treatment by applying four conceptual frames: the legal basis of FET, its nature as a standard, its content and finally the implications of its breach. The first two chapters explore the two classical sources of international law as possible sources for FET. The main sources of FET lie in a rich conventional framework, mainly bilateral and regional. Yet the high number of BITs does not appear to offer a uniform model of FET clauses, quite the opposite; the book offers a classification of the FET clauses found in more than 400 BITs. Having concluded that the conventional framework is essential to FET, the book turns to the examination of the possible customary character of FET and argues that the view equating FET with the International Minimum Standard is erroneous and it limits the scope of FET. Alternatively, it suggests that the FET standard is an independent standard of customary nature. Then the book looks at the nature of FET, that of being a standard and retains three direct consequences for its meaning: its flexibility, the absence of a fixed content and its evolutionary character. With these three characteristics in mind, it proceeds to the third conceptual framework, the content of FET. Although no fixed content may be given to it, it identifies and develops each one of those situations in which the FET standard has already been applied. Finally, the last conceptual framework aims at discussing the final act of a FET claim, i.e. the amount of compensation awarded. It argues that FETis a standard which balances the interests and behaviours of both the States and the investors, at the stage of compensation.

Trusteeship and the civilizing mission in international relations did not end with the emergence of the self-determination entitlement that led to decolonization in the second half of the 20th century. International organizations, whose modern form emerged during the height of colonialism, took on the 'civilizing' role in the 'post-colonial' era, internationalizing trusteeship and re-legitimizing it as a feature of international public policy into the bargain. Through analysis of the history of and purposes associated with the involvement of international organizations in territorial administration, such as UN missions in Kosovo and East Timor, a comparison between this activity and colonial trusteeship, the Mandate and Trusteeship arrangements, and an exploration of the modern ideas of international law and public policy that underpin and legitimize contemporary interventions, this book relates a new history of the concept of international trusteeship.

From British colonialist Lord Lugard's 'dual mandate' to the 'state-building' agenda of the High Representative in Bosnia and Herzegovina, Lord Ashdown, wide-ranging links between the complex peace operations of today and the civilizing mission of the colonial era are established, offering a historical, political, and legal framework within which the legitimacy of, and challenges faced by, complex interventions can be appraised. This new history of international trusteeship raises important questions about the role of international law and organizations in facilitating relations of domination and tutelage, and suggests that the contemporary significance of the self-determination entitlement needs to be re-evaluated.

This fully updated second edition the work previously known as The Handbook of Humanitarian Law in Armed Conflicts sets out an international 'manual' of humanitarian law in armed conflicts accompanied by case analysis and extensive explanatory commentary by a team of distinguished and internationally renowned experts.

Topics examined include the historical development, legal basis, and scope of application of international humanitarian law; methods and means of combat; protection of the civilian population, and of the wounded, sick or shipwrecked, and of prisoners of war; the protection of cultural property; the law of neutrality; and the enforcement of international humanitarian law.

This edition also incorporates new chapters covering the law of non-international armed conflicts and international peace operations. Highly topical issues including the role of the UN security council, the relevance of International Humanitarian Law in peacetime and post-conflict military operations, and enforcement through trials for war crimes in national and international courts are also discussed.